Wiley et al v. Partiz et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Glenn Wiley, et al.,
Plaintiffs,
v.
Deborah Partiz, et al.,
Defendants.
No. CV-25-00704-TUC-RM (BGM)
REPORT AND RECOMMENDATION
Before the Court are City Defendants’ Motion to Dismiss, (Doc. 9), Defendant
Deborah Partiz’s Motion to Dismiss Amended Complaint, (Doc. 20), City Defendants’
Motion to Dismiss Plaintiffs’ First Amended Complaint, (Doc. 23), and Plaintiffs’ Motion
to Request Time Before the Honorable Judge’s Determination, (Doc. 27). Defendants’
motions to dismiss amended complaint have been fully briefed. (See Docs. 24, 26, 29.)
Pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Local Rules of
Civil Procedure 72.1 and 72.2, this case was referred to Magistrate Judge Bruce G.
Macdonald for a report and recommendation. (Doc. 14.) Upon review of the parties’
briefs, the Magistrate Judge recommends that the District Judge, after her independent
review, deny as moot City Defendants’ Motion to Dismiss; deny Defendant Partiz’s Motion
to Dismiss Amended Complaint; grant in part and deny in part City Defendants’ Motion to
Dismiss Plaintiffs’ First Amended Complaint, and; deny Plaintiffs’ Motion to Request
Time Before the Honorable Judge’s Determination. The Magistrate Judge recommends
that Plaintiffs’ § 1983 claims against Defendants Davis and Partiz and their state law claim
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against Defendant Partiz be permitted to proceed to discovery.
BACKGROUND1
On October 16, 2024, Tucson Police Department (TPD) Officer James Davis came
to Plaintiffs’ residence in Tucson, Arizona, and ordered Plaintiffs to leave the residence
immediately under threat of arrest. (Doc. 19-1 at 1.) Officer Davis did not have a warrant
or court order and refused to allow Plaintiffs to speak with his supervisor. (Id.) As a result,
Plaintiffs were removed from their home and suffered damages. (Id.)
Presumably earlier in the day, putative landlord Deborah Partiz claimed Plaintiffs
were not permitted to remain in the residence. (Id. at 2.) Partiz requested police assistance
to remove Plaintiffs from the property. (Id.) Plaintiffs were removed from the residence
without an eviction order. (Id.) As a result, Plaintiffs lost possession of their home and
access to personal property and suffered damages. (Id.)
PROCEDURAL HISTORY
On December 19, 2025, Defendant City of Tucson (City) removed this action from
Pima County Superior Court. (Doc. 1.) Prior to removal, Defendant Partiz answered
Plaintiffs’ original complaint on December 17, 2025. (See id. ¶ 2.) Defendant Partiz
consented to the removal. (Doc. 1 at 1.) On January 9, 2026, City Defendants filed a
Motion to Dismiss Plaintiffs’ original complaint. (Doc. 9.) On February 3, 2026, while
City Defendants’ Motion to Dismiss was pending, Plaintiffs were granted leave to file an
amended complaint as a matter of course. (Doc. 18.) On February 17, 2026, Plaintiffs
filed their Amended Complaint. (Doc. 19.) On February 20, 2026, Defendant Partiz filed
a Motion to Dismiss Amended Complaint. (Doc. 20.) On March 3, 2026, City Defendants
1 The information in the background section is taken from Plaintiffs’ Amended Complaint.
(See Doc. 19.) All allegations of material fact are taken as true and construed in the light
most favorable to Plaintiffs as the nonmoving parties. Manzarek v. St. Paul Fire & Marine
Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Liberally construing Plaintiffs’ Amended
Complaint, and observing no objection(s) to the contrary, the Court interprets Plaintiffs’
claims to apply to the both of them. Cf. Espinosa v. City & Cnty. of S.F., 598 F.3d 528,
533 (9th Cir. 2010) (“An overnight guest in a home staying with the permission of the host
has a reasonable expectation of privacy under the Fourth Amendment.”).
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filed a Motion to Dismiss Plaintiff’s First Amended Complaint. (Doc. 23.) On March 5,
2026, the Court issued an Order under Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003),
summarizing Defendants’ arguments and instructing Plaintiffs to respond to Defendants’
motions to dismiss. (Doc. 24.) On March 17, 2026, Plaintiffs filed their response. (Doc.
26.) The same day, Plaintiffs filed a Motion to Request Time Before the Honorable Judge’s
Determination. (Doc. 27.) And on March 24, 2026, City Defendants filed their Reply in
Support of Motion to Dismiss Plaintiff’s First Amended Complaint. (Doc. 29.) This
Report and Recommendation follows.
LEGAL STANDARD
To determine whether a complaint states a valid claim, a district court considers
whether the complaint contains sufficient facts, that if accepted as true, “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim
has facial plausibility “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Federal Rule of Civil Procedure 8 instructs that a complaint must contain “a short
and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). While a complaint need not contain every factual detail, “unadorned, the-
defendant-unlawfully-harmed-me accusation[s]” are insufficient to survive a motion to
dismiss. Iqbal, 556 U.S. at 678. A complaint is also insufficiently pled if it offers “naked
assertions devoid of further factual enhancement.” Id. (cleaned up). A plaintiff must allege
that he suffered a specific injury as a result of the conduct of a particular defendant, and he
must allege an affirmative link between the injury and the conduct of that defendant. See
Rizzo v. Goode, 423 U.S. 362, 371 (1976). Rule 8 requires “simplicity, directness, and
clarity,” such that a defendant should easily be able to determine the basis upon which he
is being sued. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).
In pro se civil rights cases, the court must accept as true the allegations in the
complaint, liberally construe the pleading in the light most favorable to the plaintiff, and
resolve all doubts in the plaintiff’s favor. Bernhardt v. L.A. Cnty., 339 F.3d 920, 925 (9th
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Cir. 2003). However, a court is not required to accept as true conclusory allegations,
unreasonable inferences, or unwarranted deductions of fact. Metzler Inv. GMBH v.
Corinthian Colls., Inc., 540 F.3d 1049, 1064-65 (9th Cir. 2008). A court also cannot act
as counsel for a self-represented litigant, Pliler v. Ford, 542 U.S. 225, 231 (2004), or supply
the essential elements of the litigant’s claims, Ivey v. Bd. of Regents of Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982). Unless it is clear that deficiencies in a complaint cannot be
cured, pro se litigants are generally entitled to notice of a complaint’s deficiencies and an
opportunity to amend prior to the dismissal of an action. Karim-Panahi v. L.A. Police
Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
DISCUSSION
Plaintiffs’ Amended Complaint explicitly includes three claims. (Doc. 19-1 at 1-2.)
They are: (i) a Fourth Amendment unlawful seizure claim against Defendant Davis; (ii) a
Monell claim against the City; and (iv) a state law claim under the Arizona Residential
Landlord Tenant Act (ARLTA) against Defendant Partiz. (Id.)
Defendants bring their motions to dismiss amended complaint asserting Plaintiffs’
claims should be dismissed because: (i) Plaintiffs fail to satisfy Rule 8’s pleading standards;
(ii) Plaintiffs fail to establish a § 1983 Monell claim; (iii) Plaintiffs fail to establish that
Partiz is a state actor under § 1983; (iv) Plaintiffs fail to state a claim under the ARLTA;
and (v) the Court should decline to exercise supplemental jurisdiction over Plaintiffs’ state
law claims. (Docs. 20 at 1-3; 23 at 3-6.) Defendants’ arguments are addressed in order.
I. City Defendants’ Motion To Dismiss Moot
As a preliminary matter, the Court notes that City Defendants’ original motion to
dismiss has yet to be ruled upon and should be denied as moot since Plaintiffs filed a timely
Amended Complaint. (See Docs. 9, 18, 19.) “It is well-established in [the United States
Court of Appeals for the Ninth C]ircuit that an amended complaint supersedes the original,
the latter being treated thereafter as non-existent.” Ramirez v. Cnty. of San Bernardino,
806 F.3d 1002, 1008 (9th Cir. 2015) (cleaned up). As such, Plaintiffs’ Amended
Complaint, (Doc. 19), supersedes their original complaint, (Doc. 1-3 at 3-9), and the
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original complaint ceases to exist. See id. Because City Defendants’ original motion to
dismiss, (Doc. 9), targeted Plaintiffs’ original complaint, which is no longer in effect, City
Defendants’ original motion to dismiss should be denied as moot. See id. (“Because the
[d]efendants’ motion to dismiss targeted the [p]laintiff’s [f]irst [a]mended [c]omplaint,
which was no longer in effect, … the motion to dismiss should have been deemed moot.”)
II. Fourth Amendment Unlawful Seizure Claim Against Defendant Davis
City Defendants first argue that Plaintiffs’ Amended Complaint should be dismissed
because it is devoid of factual allegations to establish any wrongdoing by Defendants Davis
and the City and that the pleading fails to connect any factual allegations to the alleged
constitutional violations. (Doc. 23 at 4.) As it concerns Plaintiffs’ claim against Defendant
Davis, the Court disagrees.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “A seizure is a meaningful interference with an individual’s possessory
interests in [his] property.” Brewster v. Beck, 859 F.3d 1194, 1196 (9th Cir. 2017) (internal
quotation marks and citation omitted). Whether a seizure is unreasonable depends upon
the facts and circumstances of each case. Miranda v. City of Cornelius, 429 F.3d 858, 864
(9th Cir. 2005). “A seizure conducted without a warrant is per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well delineated
exceptions.” United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001) (internal
quotation marks and citation omitted).
“To state a claim under § 1983, a plaintiff must allege two essential elements: (1)
that a right secured by the Constitution or laws of the United States was violated, and (2)
that the alleged violation was committed by a person acting under the color of State law.”
Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) (citation omitted).
To be individually liable under § 1983, a defendant must have had “personal participation
in the alleged rights deprivation.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). A
defendant deprives another of a constitutional right if he “does an affirmative act,
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participates in another’s affirmative acts, or omits to perform an act which he is legally
required to do that causes the deprivation of which the plaintiff complains.” Leer v.
Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (cleaned up).
A. Plaintiffs State Fourth Amendment Claim
Plaintiffs allege Officer Davis violated their Fourth Amendment possessory interest
rights because (i) on October 16, 2024, (ii) Officer Davis, (iii) acting in his official capacity,
(iv) came to their residence, (v) ordered them to leave the premises, (vi) under threat of
arrest, (vii) without a warrant or court order, (viii) Plaintiffs were removed from their home,
and (ix) they suffered loss of housing and other damages as a result. (See Doc. 19-1 at 1.)
These allegations are sufficient to state a § 1983 unlawful seizure claim against Defendant
Davis, and Plaintiffs’ claim should be allowed to proceed.
B. Counterargument Unavailing
City Defendants argue that Plaintiffs’ Amended Complaint “remains devoid of
factual allegations to establish any wrongdoing by Defendant Davis” and that it fails to
connect “any factual allegations to the federal claims alleged.” (Doc. 23 at 4.) However,
contrary to City Defendants’ argument, Plaintiffs need not allege “what happened during
[the] incident, why they were asked to leave the home, and why one of them was removed
from the home,” (id.), at the pleading stage. Instead, “a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated
the Constitution.” Iqbal, 556 U.S. at 676. Plaintiffs have done so here.
III. Fourth Amendment Unlawful Seizure Claim Against Defendant Partiz
In addition to sufficiently stating a Fourth Amendment claim against Officer Davis,
Plaintiffs also state a Fourth Amendment claim against Defendant Partiz. While Plaintiffs’
Amended Complaint fails to include a heading for a separate § 1983 private actor claim
against Partiz, (see Doc. 19-1 at 1-2), they have nonetheless pleaded such a claim.
“A civil rights plaintiff suing a private individual under § 1983 must demonstrate
that the private individual acted under color of state law.” Franklin v. Fox, 312 F.3d 423,
444 (9th Cir. 2002). “In the typical case raising a state-action issue, a private party has
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taken the decisive step that caused the harm to the plaintiff, and the question is whether the
State was sufficiently involved to treat that decisive conduct as state action.” Id. (quoting
Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 192 (1988)). The Ninth Circuit
has articulated four tests for determining whether a private person acted under color of state
law: (1) the public function test, (2) the joint action test, (3) the government nexus test, and
(4) the government coercion or compulsion test. Franklin, 312 F.3d at 445.
“Under the joint action test, courts examine whether state officials and private
parties have acted in concert in effecting a particular deprivation of constitutional rights.”
Id. (internal quotation marks and citation omitted). “The test focuses on whether the state
has so far insinuated itself into a position of interdependence with the private actor that it
must be recognized as a joint participant in the challenged activity.” Id. (cleaned up). A
plaintiff may demonstrate joint action “by showing that the private party was a willful
participant in joint action with the State or its agents.” Id. (cleaned up). “The extent of
state involvement remains a factual inquiry,” Howerton v. Gabica, 708 F.2d 380, 383 (9th
Cir. 1983), and “there is no specific formula for defining state action,” Melara v. Kennedy,
541 F.2d 802, 805 (9th Cir. 1976).
A. Plaintiffs State Fourth Amendment Claim Against Defendant Partiz
Plaintiffs allege sufficient information to draw the reasonable inference that putative
landlord Defendant Partiz was a willful participant in a joint action with Officer Davis to
unlawfully interfere with Plaintiffs’ possessory interest in their home.
Plaintiffs contend that Partiz contacted law enforcement officials falsely asserting
they were not permitted to remain in their residence and requesting that officials remove
Plaintiffs from the property. (See Doc. 19-1 at 2.) In response to Partiz’s request, Officer
Davis arrived at Plaintiffs’ residence and ordered Plaintiffs to vacate the premises under
threat of arrest without further investigation or a warrant. (See id. at 1.) Partiz had failed
to obtain an eviction order, and Plaintiffs lost possession of their home and personal
property as a result of Davis’s unfounded order. (See id. at 2.)
Liberally construing these allegations in the light most favorable to Plaintiffs, they
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have stated an unlawful seizure claim against Defendant Partiz under a joint action theory
of liability. See Howerton, 708 F.2d at 385 (allowing plaintiffs’ § 1983 claim against
private landlords to proceed, where landlords cloaked themselves with authority of state in
effecting repossession of plaintiffs’ home and law enforcement actively intervened on
landlords’ eviction request); Hollandsworth v. City & Cnty. of Honolulu, 440 F. Supp. 3d
1163, 1177 (D. Haw. 2020) (finding plaintiff sufficiently alleged joint action even though
repossession in question involved single request for police assistance). Plaintiffs’ § 1983
unlawful seizure claim against Defendant Partiz should therefore be allowed to proceed.
B. Counterargument Unavailing
Defendant Partiz argues that Plaintiffs’ Amended Complaint “contains no factual
allegations establishing that [she] acted under color of state law” because “[m]erely
contacting law enforcement does not convert a private party into a state actor.” (Doc. 20
at 1-2.) This argument is unpersuasive.
Plaintiffs allege that Defendant Partiz initiated an unlawful eviction against them.
(See Doc. 19-1 at 2.) Officer Davis was not an innocent police officer on standby observing
a lawful eviction attempt by Partiz. Rather, Officer Davis directly intervened and ordered
Plaintiffs from their residence under threat of arrest. (Doc. 19-1 at 1.) Liberally construed,
these allegations establish a plausible § 1983 “joint action” claim against Defendant Partiz.
Plaintiffs’ § 1983 claim against Defendant Partiz should therefore be allowed to proceed.
IV. Fourth Amendment Monell Claim
City Defendants next argue that Plaintiffs fail to state a viable Monell claim against
the City. (Doc. 23 at 5-6.) The Court agrees.
In Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978), the Supreme
Court held that municipalities are “persons” subject to damages liability under § 1983
where “action pursuant to official municipal policy of some nature cause[s] a constitutional
tort.” 436 U.S. at 691. The Court instructed that the municipality itself must cause the
constitutional deprivation and that a city may not be held vicariously liable for the
unconstitutional acts of its employees under a respondeat superior theory of liability. Id.
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A § 1983 plaintiff may establish Monell liability in one of three ways. Gillette v.
Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). “First, the plaintiff may prove that a city
employee committed the alleged constitutional violation pursuant to a formal governmental
policy or a longstanding practice or custom which constitutes the standard operating
procedure of the local governmental entity.” Id. (internal quotation marks and citation
omitted). “Second, the plaintiff may establish that the individual who committed the
constitutional tort was an official with final policy-making authority and that the
challenged action itself thus constituted an act of official governmental policy.” Id.
(internal quotation marks and citation omitted). “Third, the plaintiff may prove that an
official with final policy-making authority ratified a subordinate’s unconstitutional
decision or action and the basis for it.” Id. at 1346-47.
To establish Monell liability under the first test, a plaintiff must allege: (1) that he
possessed a constitutional right of which he was deprived; (2) that the municipality had a
policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional
right; and, (4) that the policy is the moving force behind the constitutional violation.
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011).
“Failure to train may amount to a policy of ‘deliberate indifference,’ if the need to
train was obvious and the failure to do so made a violation of constitutional rights likely.”
Dougherty, 654 F.3d 892, 900 (9th Cir. 2011) (quoting City of Canton v. Harris, 489 U.S.
378, 390 (1989)). “Similarly, a failure to supervise that is sufficiently inadequate may
amount to deliberate indifference.” Id. (internal quotation marks and citation omitted).
“Mere negligence in training or supervision, however, does not give rise to a Monell
claim.” Id. To plead a Monell claim capable of surviving dismissal, allegations in a
complaint “may not simply recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair notice and to enable the opposing party
to defend itself effectively.” AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637
(9th Cir. 2012) (internal quotation marks and citation omitted).
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A. Plaintiffs Fail To State Monell Claim Against City
Plaintiffs’ allegations are insufficient to reasonably infer that the constitutional
violation they suffered was related to a municipal policy that amounts to deliberate
indifference to their Fourth Amendment rights and that the alleged seizure would not have
occurred had the City had properly trained its police officers. Plaintiffs’ conclusory
assertion that “the [City] is responsible for the [p]olicies and [p]ractices, supervision and
training of its police officers,” (Doc. 19-1 at 2), is insufficient to satisfy the key elements
of a Monell claim. See Gonzalez v. City of San Jose, 2026 WL 1215635, at *3 (N.D. Cal.
May 4, 2026) (citing City of Canton, 489 U.S. at 388) (denying plaintiffs’ Monell claim
where “the existence of a policy without further factual allegations evidencing deliberate
indifference to plaintiffs’ rights is not enough to give rise to Monell liability.”). Plaintiffs’
§ 1983 Monell claim against the City should therefore be dismissed without prejudice.
B. Counterarguments Unavailing
In response to Defendants’ motions to dismiss, Plaintiffs reiterate that Officer Davis
violated their Fourth Amendment rights and add that Davis refused their “right to request
a superior officer,” which was a “[d]irect [v]iolation of standard police procedure and
[d]epartmental policy. (Doc. 26 at 2.) Plaintiffs further allege that Officer Davis was
“clearly acting in his official capacity as an officer of the law,” and that the City is therefore
“responsible for his actions[,] as he acts under their authority.” (Id.) These arguments are
insufficient to demonstrate that the allegations in Plaintiffs’ Amended Complaint satisfy
the pleading standards for Monell liability. See Schneider v. Cal. Dep't of Corrs., 151 F.3d
1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal,
a court may not look beyond the complaint to a plaintiff’s moving papers, such as a
memorandum in opposition to a defendant’s motion to dismiss.”)
First, a municipality “cannot be held liable solely because it employs a tortfeasor—
or, in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Benavidez, 993 F.3d at 1153 (quoting Monell, 436 U.S. at 691).
Second, the key inquiry to a Monell claim is whether the municipality’s own policy
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or custom caused the constitutional violation, not whether an individual employee violated
departmental rules. See Castro v. Cnty. of L.A., 833 F.3d 1060, 1075 (9th Cir. 2016)
(internal quotation marks and citation omitted) (“The custom or policy must be a deliberate
choice to follow a course of action ... made from among various alternatives by the official
or officials responsible for establishing final policy with respect to the subject matter in
question.”); Young v. City of Visalia, 687 F. Supp. 2d 1141, 1150 (E.D. Cal. 2009)
(“[W]ithout identifying the training and hiring practices, how those practices were
deficient, and without an identification of the obviousness of the risk involved, the Court
cannot determine if a plausible claim is made for deliberately indifferent conduct.”)
Third, Plaintiffs also fail to state a Monell claim under a “custom or policy” theory
of liability because a plaintiff cannot prove the existence of a municipal custom or policy
based solely on the occurrence of a single incident of unconstitutional action by a non-
policymaking employee. See Gonzalez v. Santa Clara County, 793 F. Supp. 3d 1093, 1107
(N.D. Cal. May 28, 2025) (denying plaintiffs’ Monell claim where they failed to identify a
practice, policy, or procedure that animates the constitutional violation at issue).
Finally, to the extent Plaintiffs reference documents attached to their response to
Defendants’ motions to dismiss, the Court declines the invitation to consider the documents
in analyzing the sufficiency of their Amended Complaint. See Schneider, 151 F.3d at 1157
n.1 (“The focus of any Rule 12(b)(6) dismissal—both in the trial court and on appeal—is
the complaint.”) Plaintiffs’ § 1983 Monell claim against the City should therefore be
dismissed without prejudice.
V. State Law Claim Under Arizona Residential Landlord And Tenant Act
Defendant Partiz argues that Plaintiffs’ ARLTA claim against her fails because they
fail to allege sufficient facts to establish a valid claim under the statute. (See Doc. 20 at 2.)
The Court disagrees.
“In 1973 Arizona adopted a modified version of the Uniform Residential Landlord
and Tenant Act.” Van Buren Apartments v. Adams, 701 P.2d 583, 584 (Ariz. Ct. App.
1984). The Arizona Residential Landlord and Tenant Act (ARLTA), A.R.S. §§ 33-1301
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through 13-1381, “governs all residential landlord and tenant rights and obligations in
Arizona.” In re Reeves, 2006 WL 8554383, at *4 (Bankr. D. Ariz. Mar. 30, 2006). “Its
principal purpose is to encourage landlord and tenant to maintain and improve the quality
of Arizona rental homes.” Van Buren Apartments, 701 P.2d at 584. The ARLTA “creates
rights and remedies for tenants whose landlords unlawfully exclude them from their
residences.” M2 Real Sols. LLC v. Perry, 2018 WL 1124225, at *2 (Ariz. Ct. App. 2018).
The ARLTA establishes a cause of action for “unlawful ouster.” Schaefer v.
Murphey, 640 P.2d 857, 860 (Ariz. 1982). “Unlawful ouster, as defined by statute, occurs
in two situations: 1) the landlord removes or excludes the tenant from the premises
unlawfully, or 2) the landlord interrupts, or causes the interruption of, essential services.”
Id. “Either of these circumstances will preclude a tenant from occupying the rental
premises.” Id. “Thus, the evident intent of [§] 33-1367 is to deal with the wrongful
dispossession situation occasioned by the actual removal or exclusion of the tenant or by
the willful diminution of services.” Id. The statute provides, in relevant part, “[i]f the
landlord unlawfully removes … the tenant from the premises …, the tenant may recover
possession or terminate the rental agreement and, in either case, recover an amount not
more than two months’ periodic rent or twice the actual damages sustained by him,
whichever is greater.” A.R.S. § 33-1367.
A. Plaintiffs’ State ARLTA Violation Against Defendant Partiz
Plaintiffs provide sufficient facts to draw the reasonable inference that Defendant
Partiz caused their unlawful ouster from their residence on October 16, 2024. (See Doc.
19-1 at 2.) Plaintiffs contend Partiz violated the ARLTA by falsely claiming they were not
permitted to remain in their residence, that she requested and received police intervention,
that Plaintiffs were removed from their residence without a proper order of eviction, and
that Plaintiffs suffered damages as a result. (Id.) These facts are sufficient to state a
violation of A.R.S. § 33-1367. As such, Plaintiffs’ state law claim for an ARLTA violation
against Defendant Partiz should be allowed to proceed.
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B. Counterarguments Unavailing
Defendant Partiz asserts Plaintiffs’ ARLTA claim should be dismissed because
Plaintiffs fail to allege they entered a lease, rental agreement, or contractual relationship
with her; they fail to establish the existence of a landlord-tenant relationship; they fail to
allege facts that demonstrate the ARLTA applies; and that they fail to establish that they
were statutory tenants under the ARLTA. (Doc. 20 at 2.) Partiz also asserts that Plaintiffs
fail to allege that she engaged in a self-help eviction, lockout, utility shutoff, physical
removal, or other conduct prohibited by the statute. (Id.) These arguments are unavailing.
Defendant Partiz fails to demonstrate there is a heightened pleading standard for a
state law claim of an ARLTA violation. (See Doc. 20 at 2.) Plaintiffs’ Amended Complaint
provides sufficient notice to Partiz of the allegations against her and the basis upon which
they rest. See Pomaville v. Finney Flats, LLC, 2016 WL 1730510, at *3 (D. Ariz. May 2,
2016) (denying request to dismiss plaintiff’s ARLTA retaliation claim by concluding “that
exalting form over substance would serve no purpose”). Furthermore, since the Court has
original jurisdiction over Plaintiffs’ constitutional claims and because the constitutional
claims “form part of the same case or controversy” as their state-law claim, Partiz’s request
for the Court to decline to exercise supplemental jurisdiction over Plaintiffs’ state law
claim, (see id. at 3), fails. See 28 U.S.C. § 1367(a) (“[I]n any civil action of which the
district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy.”). Plaintiffs’ state
law ARLTA claim against Defendant Partiz should therefore be allowed to proceed.
VI. Request For Additional Time To Obtain Counsel
Lastly, Plaintiffs request additional time to obtain legal counsel before a ruling on
the motions at hand. (Doc. 27 at 1.) Plaintiffs assert they have been attempting to acquire
legal counsel with little success. (Id.) Plaintiffs’ request should be denied.
There is no legal right to appointment of counsel in a civil case. See Johnson v.
Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991). “However, a court may under
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exceptional circumstances appoint counsel for indigent civil litigants pursuant to 28 U.S.C.
§ 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (cleaned up). In
determining whether exceptional circumstances exist, a court considers the likelihood of
success on the merits and the ability of a plaintiff to articulate his claims in light of the
complexity of the legal issues involved. Id. “Neither of these considerations is dispositive
and instead must be viewed together.” Id.
It is clear from the record that Plaintiffs are not proceeding as indigent civil litigants
and their motion for additional time fails to indicate they are having trouble articulating
their claims in view of the complexity of the legal issues involved. (See Doc. 27 at 1-2.)
It has been well over two months since Plaintiffs filed their request for additional time to
obtain counsel, and there is no indication on the record that counsel has appeared on their
behalf or been hired. Plaintiffs’ motion for additional time to obtain counsel before the
Court issues its determination should therefore be denied.
RECOMMENDATION
The Magistrate Judge recommends that the District Judge, after her independent
review, deny as moot City Defendants’ Motion to Dismiss (Doc. 9); deny Defendant
Deborah Partiz’s Motion to Dismiss Amended Complaint (Doc. 20); grant in part and deny
in part City Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint (Doc.
23); and deny Plaintiffs’ Motion to Request Time Before the Honorable Judge’s
Determination (Doc. 27). The Magistrate Judge further recommends that dismissal of
Plaintiffs’ Monell claim be without prejudice. Pursuant to 28 U.S.C. § 636(b)(1) and
Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections
within fourteen (14) days of being served with a copy of this Report and Recommendation,
and a party may respond to another party’s objections within fourteen (14) days after being
served with a copy. No replies shall be filed unless leave is granted by the District Judge.
Failure to file timely objections to any factual or legal determination of the Magistrate
Judge may result in waiver of the right of de novo review.
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Dated this 29th day of May, 2026.
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